Pearse Doherty (Donegal, Sinn Fein)
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I am delighted the committee is dealing with my legislation. I am also delighted my Bill, and the important issues it covers, has passed Second Stage and will now proceed to Committee Stage. Today, we are dealing with pre-legislative scrutiny and I welcome the opportunity to do that. I thank Members across the political divide who have unanimously supported the passage of this legislation.

Since then, the Minister for Finance wrote to me asking for priority to be given to his Bill which he just discussed. I only received the letter after the committee had agreed in private session to examine the Bills in tandem at the pre-legislative scrutiny Stage. I believe this is the best approach today.

The Bill is based on the excellent work of FLAC in its report, Redressing the Imbalance. I am glad we will hear from FLAC later this morning, as well as from the Financial Services Ombudsman. The day my Bill was debated on Second Stage, the Government published its own legislation. I am glad that after much delay, it did so. We can see a crossover, with the issues raised in my Bill now included in the Government's Bill. However, there are differences, some subtle and some not so. In particular, I am glad there was support across the spectrum for what I considered the most important element of my legislation, namely the amendment to the blanket ban on complaints after six years. I note the Government's Bill, as well as Deputy Michael McGrath's, supports this principle but has gone for a three-year rule instead. I am happy to work with that. Although, as I will tease out later with the Minister, I believe the approach in the Government's legislation may have too many get-out clauses which may work against consumer. The term, which the Minister mentioned, "ought to have known" is also of concern to me.

The other critical issue for me, one on which I have not heard any sense of compromise from the Government, is the right of consumers, as well as of financial institutions, to have their day in court. That means having the right to appeal to the Circuit Court which provides greater ease of access to individuals. As we know, an appeal to the High Court is not only more costly but the appeals are legally tighter. I wish to work with the Government on this issue.

As I have said before, the appropriate course would be to consider merging both Bills. The Government's is far more comprehensive, as it deals with the merging of two existing offices and takes on board some of the issues I have raised. In that light, it would be open to me to withdraw my Bill if the important issues, including the right to appeal to the Circuit Court, were addressed or assurances could be given that these would be considered as part of the Government's legislation.

Regarding the definition of "consumer", my proposal is for a two-tier system for personal and commercial consumers. This has been suggested as a possible way forward in future to ensure the processes in place will genuinely cater for the ordinary person on the street. It would also ensure the Financial Services Ombudsman's office would not be overrun with complaints. In reality, complaints might be more appropriately dealt with by the Commercial Court, for example.

A question was raised about sole traders and charities. It is not my intention to exclude those from the definition of "consumer". That can be dealt with on Committee Stage.

Important points have been raised by our court system and, indeed, in the FLAC report, Redressing the Imbalance. The latter gave an example of where the courts have suggested that cases which have gone before the Financial Services Ombudsman would be better addressed in the Commercial Court. Its report questioned whether the ombudsman's expanded definition of "consumer" would stand the test of a constitutional challenge. That is the intention behind the relevant section in my legislation. Again, I am willing to hear from others as to the appropriateness, or not, of this section.

A seemingly small, but important, issue in this section of the Bill is to allow for a greater range of findings to be made by the ombudsman. The current options have failed to represent the actual results. FLAC research shows they have caused greater anger when a consumer who feels the system has not helped him or her in any way is told that the case was partially upheld. This is because, on a technical issue, the Financial Services Ombudsman has found in his or her favour, but the substance of the claim was rejected. The complaint has been partially upheld which seems a very positive finding, but the reality is that the claim was substantially rejected. Therefore, I propose four options in regard to findings, namely, upheld, substantially upheld, substantially rejected or rejected. They should mirror the legislation that allows for the name-and-shame principle, which was introduced a number of years ago.

As I indicated on Second Stage, I am open to discussion on all of these points. If I receive adequate reassurances on the issue regarding the Statute of Limitations and the right to access to the courts in particular, I would look forward to allowing priority for the Minister's Bill.

My Bill has already passed Second Stage and will proceed to Committee Stage, while the Government Bill is at the pre-legislative scrutiny stage. It is important that the more comprehensive Bill is allowed to pass through the Houses of the Oireachtas as speedily as possible. Following the debate on my Bill on Second Stage, the Government published its Bill which included many of the key issues, but there are quite important differences. It is to be hoped we can tease them out in the meantime and make sure that the time we have in the committee, Dáil and Seanad is best used to deal with one Bill that deals with all of the issues comprehensively.